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Diaz v. Calloway

United States District Court, N.D. Illinois, Eastern Division

November 9, 2017

RAFAEL DIAZ, Petitioner,
VICTOR CALLOWAY, Warden, Danville Correctional Center, Respondent.


          Robert M. Dow, Jr. United States District Judge

         Petitioner Rafael Diaz (“Petitioner”) is an inmate at the Danville Correctional Center in the custody of Warden Victor Calloway (“Respondent”). Petitioner is serving a 12-year sentence for a conviction of aggravated criminal sexual assault. Before the Court is Petitioner's application for a writ of habeas corpus under 28 U.S.C. § 2254 in which he argues that his state conviction and sentence should be vacated because (1) he was denied effective assistance of counsel when his trial counsel failed to request a jury instruction of battery as a lesser included offense of aggravated criminal sexual assault, and (2) he was denied his right to due process when the trial court failed to instruct the jury on the use of prior inconsistent statements as substantive evidence (paragraph two of Illinois Pattern Instruction (“IPI”) 3.11). See [1]. For the reasons set forth below, the Court denies Plaintiff's petition [1], declines to certify any issue for appeal pursuant to 28 U.S.C. § 2253(c)(2), and directs the Clerk to enter judgment in favor of Respondent.

         I. Background

         Petitioner was charged with aggravated criminal sexual assault and home invasion in Cook County, Illinois. He elected to be tried by a jury.

         At his May 2012 trial, the victim, R.A.E., testified that she returned home from work on August 31, 2008 to the trailer that she shared with her husband, her five year old son, and her brothers Antonio and Isidro. R.A.E. testified that Isidro was alone on the porch when she arrived home and was not drinking, but on cross-examination R.A.E. admitted that she told police following the incident that Isidro had been drinking. R.A.E. testified that upon arriving home she entered the trailer, showered, and went to sleep in her bedroom next to her son.

         R.A.E. testified further that she awoke to find a man who she identified as Petitioner on top of her with his fingers in her vagina. When R.A.E. defended herself, Petitioner hit her, pulled her hair, and called her a “fucking bitch.” [6-11] at 249. He then threw her off the bed onto the floor and continued to strike and kick her. Id. R.A.E. testified that she screamed for help, which caused her brother Antonio to enter the room. On cross-examination, defense counsel presented R.A.E. with a police report that recorded that she told police that Isidro had come into her room, struggled with Petitioner, and chased him out of her bedroom. R.A.E. testified that she did not recall whether she told officers this.

         R.A.E. further testified that, after speaking to police officers, she was taken to the hospital and examined and interviewed by nurse Nancy Healy. Nurse Healy testified at trial. According to Nurse Healy, R.A.E. (with the help of a Spanish translator) told her that Petitioner put four fingers in her vagina and she experienced vaginal pain during the incident. [6-12] at 43. R.A.E. had bruising and swelling around her eyes, forehead and mouth and visible injuries to her shoulder, arm and back. Id. at 42, 49-50. Nurse Healy testified that she performed a vaginal examination and administered a sexual assault kit, but did not observe any injuries to R.A.E.'s vagina, pelvis, or abdomen.

         R.A.E.'s brother Antonio testified at trial that on the night of October 31, 2008, he picked up R.A.E.'s son after work and upon arriving home saw Isidro on the porch. Antonio testified that Isidro was not drinking. He further testified that R.A.E. came home from work around midnight and went into her room. Antonio fell asleep on the couch and was awakened around 4:00 a.m. by Petitioner entering the trailer and locking the door behind him. Petitioner asked for directions to the bathroom and Antonio pointed him to the back of the trailer. About five minutes later, Antonio heard his sister screaming so went to her room. He opened the door and saw Petitioner on the floor with R.A.E., holding her by the hair and hitting her in the face. Antonio ran for help. Isidro tried to open the trailer door when he heard R.A.E. screaming, but the door would not open.

         At trial, Officer Robitz testified that when he found Petitioner following the incident, he had scratches on his face.

         Petitioner also testified at his trial. According to Petitioner, on the night of August 31, 2008, he went to a trailer park to visit friends. He drank more than a case of beer over the course of the evening. Around 1:30 a.m., he encountered Isidro and Isidro invited him over to his trailer for more drinks. Isidro and Petitioner got into an argument over whether Petitioner took Isidro's wallet, and Isidro threatened Petitioner with a stick. Isidro soon discovered he was mistaken, and apologized to Petitioner. According to Petitioner, he then asked Isidro if he could use the bathroom and Isidro told him to go inside. Isidro entered the trailer and saw a young man in the couch, who he asked for directions to the bathroom. The man pointed to the back of the trailer and Petitioner walked down the hall. Petitioner looked into one room, which contained a bed.

         He opened the door to a second room, turned on the light, and saw a person. He turned off the light, closed the door, and opened the door to a third room, which was the bathroom. After using the bathroom, he went into the hall, where he saw a shadow. According to Petitioner, someone jumped out and attacked him, scratched his face, and kicked and kneed him. Petitioner hit his alleged attacker (R.A.E) and she fell to the floor. R.A.E. yelled, “what are you doing in my house?, ” but Petitioner did not say that Isidro had let him use the bathroom. Instead, according to Petitioner, he hit R.A.E several time, causing her injuries that were depicted in photo exhibits presented at trial. According to Petitioner, the struggle lasted ten to thirty seconds, and then he fled.

         Prior to closing arguments, the court held a jury instruction conference with counsel. Petitioner's trial counsel did not request an instruction for battery as a lesser-included offense of aggravated criminal sexual assault. See [6-13] at 17-19.

         At the jury instruction conference, Petitioner's counsel proffered the full IPI 3.11 pertaining to prior inconsistent statements. [6-13] at 20-21. The full pattern instruction contains language indicating that jurors can consider some inconsistent statements-which would otherwise be inadmissible hearsay-as substantive evidence. Specifically, it states in relevant part:

The believability of a witness may be challenged by evidence that on some former occasion he made a statement that was not consistent with his testimony in this case. Evidence of this kind ordinarily may be considered by you only for the limited purpose of deciding the weight to be given the testimony you heard from the witness in this courtroom.
However, you may consider a witness's earlier inconsistent statement as evidence without this ...

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